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[U] Commonwealth v. Jay

Superior Court of Pennsylvania

October 25, 2013

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
JOHN JOSEPH JAY, III, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
JOHN JOSEPH JAY, III, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
JOHN JOSEPH JAY, III, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
JOHN JOSEPH JAY, III, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
JOHN JOSEPH JAY, III, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
JOHN JOSEPH JAY, III, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order Entered January 31, 2013, In the Court of Common Pleas of Washington County, Criminal Division, at Nos. CP-63-CR-0000676-2010, CP-63-CR-0001103-2010, CP-63-CR-0002160-2010, CP-63-CR-0002708-2010, CP-63-CR-0002709-2010, CP-63-CR-0000214-2011.

BEFORE: FORD ELLIOTT, P.J.E., GANTMAN and SHOGAN, JJ.

MEMORANDUM

SHOGAN, J.

Appellant, John Joseph Jay, III, appeals from the orders denying his petitions for collateral relief filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A §§ 9541-9546. In addition, counsel has filed a motion seeking to withdraw. We grant counsel's motion to withdraw and affirm the orders of the PCRA court.

We summarize the history of this case as follows. On May 26, 2011, Appellant pled guilty before the Court of Common Pleas of Washington County in cases numbered: 676-2010, 1103-2010, 2160-2010, 2708-2010, 2709-2010 and 214-2011. At case 676-2010, Appellant pled guilty to access device fraud and was sentenced to a term of incarceration of two to four years, consecutive to the sentence imposed at case 1612-2009.[1] At case 1103-2010, Appellant pled guilty to theft by unlawful taking and was sentenced to a term of incarceration of one to three years, consecutive to the sentences at case numbers 1612-2009 and 676-2010. At case 2160-2010, Appellant pled guilty to theft by unlawful taking and was sentenced to a term of incarceration of one to two years, concurrent with the sentence imposed at case 1612-2009. At case 2708-2010, Appellant pled guilty to receiving stolen property and was sentenced to a term of incarceration of one to two years, concurrent with the sentence imposed at case 1612-2009. At case 2709-2010, Appellant pled guilty to criminal trespass and was sentenced to a term of incarceration of two to four years, concurrent with the sentence imposed at case 676-2010. At case 214-2011, Appellant pled guilty to theft by unlawful taking and was sentenced to a term of incarceration of six to twelve months, concurrent with the sentence imposed at case 676-2010. Appellant did not file a direct appeal from the judgments of sentence at case numbers 676-2010, 1103-2010, 2160-2010, 2708-2010, 2709-2010 or 214-2011.

On August 24, 2012, Appellant filed pro se PCRA petitions in the above captioned cases.[2] The PCRA court appointed counsel to represent Appellant, and on November 29, 2012, counsel filed amended PCRA petitions on Appellant's behalf. On December 21, 2012, the PCRA court appointed instant counsel to represent Appellant. On January 9, 2013, the PCRA court issued notice of its intent to dismiss the petitions pursuant to Pa.R.Crim.P. 907. On January 31, 2013, the PCRA court entered orders dismissing the PCRA petitions. These timely appeals followed.

After filing a brief on May 22, 2013, Appellant's PCRA attorney filed a motion to withdraw as counsel on May 29, 2013. In an order in the form of a rule to show cause, dated July 2, 2013, this Court directed counsel to properly inform Appellant of his intent to withdraw, pursuant to relevant case law. Counsel has since filed with this Court an appropriate Turner/Finley document.[3] [4]

When counsel seeks to withdraw representation in a collateral appeal, the following conditions must be met:

1) As part of an application to withdraw as counsel, PCRA counsel must attach to the application a "no-merit" letter,
2) PCRA counsel must, in the "no-merit" letter, list each claim the petitioner wishes to have reviewed, and detail the nature and extent of counsel's review of the merits of each of those claims,
3) PCRA counsel must set forth in the "no-merit" letter an explanation of why the petitioner's issues are meritless,
4) PCRA counsel must contemporaneously forward to the petitioner a copy of the application to withdraw, which must include (i) a copy of both the "no-merit" letter, and (ii) a statement advising the PCRA petitioner that, in the event the trial court grants the application of counsel to withdraw, the petitioner has the right to proceed pro se, or with the assistance of privately retained counsel;
5) The court must conduct its own independent review of the record in light of the PCRA petition and the issues set forth therein, as well as of the contents of the ...

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